The connection between NSA wiretapping and telephone industry concentration

I have reported in detail, in a companion blog, about an
historic public forum on NSA wiretapping.
Here I'll report on one technology-related aspect of particular
interest to me: the collusion of the telephone companies, which has
not been played up in the press.

All the warrantless wiretapping we've recently heard about required
help from the telephone companies and Internet service
providers. These companies knew they were not only aiding the
government in breaking the law, but were themselves violating terms of
service for their customers--and in the case of telephone companies,
also breaking the law. One law mentioned at the public form (and
submitted years ago by the forum's moderator, Congressman Ed Markey)
forbids cell phone companies from revealing the location of cell phone
users--except with a court warrant.

In fact, the NSA wiretapping scandal represents one of the largest
conspiracies in recent years: a conspiracy between telephone companies
and the government to defraud Americans out of our Fourth Amendment
rights.

Pertaining to this is the issue of industry concentration--the death
of small phone companies and the mergers of larger ones into
behemoths--which was also one of the goals of the Bush administration,
pursued with determination by Michael Powell as FCC chair. Provisions
for competition set up in the Telecom Act of 1996, and enforced by
relatively even-handed regulations passed by earlier FCCs, were
systematically weakened and discarded under Bush. (For some history,
see an
earlier blog of mine.)

Admittedly, it's hard for any company to buck a demand from law
enforcement. The PATRIOT Act's secrecy provisions (when the FBI
approaches you, you can't even publicize the very fact that they have
done so) leaves the impression that you'll be prosecuted for going
public with government misbehavior, and thus contributes to the
growing unaccountability of government. A few Internet service
providers have done challenged illegal wiretaps, but not enough to
establish the pattern we now see in the wiretap scandal.
Overwhelmingly, the phone companies and ISPs just went along.

One might argue that the pressure would have been even stronger if
ISPs and phone companies were smaller, but size obviously hasn't
helped them put up any resistance. Believe me, if we had an industry
of scrappy Mom-and-Pop providers like in the 80s and 90s, word about
this civil liberties horror would have come out sooner.

Andy Oram
is an editor for O'Reilly Media, specializing in Linux and
free software books, and a member of Computer Professionals for Social
Responsibility. His web site is www.praxagora.com/andyo.